Florida Social Media Censorship Law Touted by Gov. DeSantis Is a ‘Frontal Assault on the First Amendment’: Lawsuit

A pair of online trade associations implored a federal judge to block a controversial Florida law that would penalize social media companies for “censoring” political candidates, calling the measure “patently unconstitutional” and a “frontal assault on the First Amendment.”

The complaint, filed Thursday in the U.S. District Court for the Northern District of Florida, asserts that S.B. 7072 infringes on the rights to freedom of speech, equal protection, and due process by compelling speech from a select group of private companies for their perceived political affiliations. Plaintiff tech trade groups, NetChoice LLC and the Computer & Communications Industry Association (CCIA), further claims that the law is preempted by Section 230 of the Communications Decency Act.

Republican Gov. Ron DeSantis began championing the bill as a way to hold “the Silicon Valley elites” accountable for “censorship and other tyrannical behavior” after Twitter and Facebook banned former President Donald Trump from their platforms for his role in inciting the Jan. 6 siege on the U.S. Capitol.

But according to the lawsuit, and the vast majority of legal experts, the measure would impose financial penalties on companies for engaging in constitutionally protected conduct, such as moderating their online platforms and enforcing their companies’ terms of service.

“The Act discriminates against and infringes the First Amendment rights of these targeted companies, which include Plaintiffs’ members, by compelling them to host—and punishing them for taking virtually any action to remove or make less prominent—even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies,” the suit stated.

The complaint notes that, under the law, the platforms would be compelled to carry a “variety of harmful, offensive, or unlawful material” such as terrorist incitement, foreign propaganda, calls for genocide, and conspiracies concerning Holocaust denial, effectively robbing companies of “core editorial functions” protected by the Constitution.

“Rather than preventing what it calls ‘censorship,’ the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish,” the complaint stated. “Although the Act uses scare terms such as ‘censoring,’ ‘shadow banning,’ and ‘deplatforming’ to describe the content choices of the targeted companies, it is in fact the Act that censors and infringes on the companies’ rights to free speech and expression; the Act that compels them to host speech and speakers they disagree with; and the Act that engages in unconstitutional speaker-based, content-based, and viewpoint-based preferences.”

As further evidence that Florida Republicans were motivated by political animus, the complaint highlighted that the law creates specific exceptions for online services owned by The Walt Disney Company and Universal Studios—which is owned by Comcast—“simply because they own well-attended ‘theme parks’ in Florida.”

“This undisguised singling out of disfavored companies reflects the Act’s true purpose, which its sponsors freely admitted: to target and punish popular online services for their perceived views and for certain content-moderation decisions that state officials opposed—in other words, to retaliate against these companies for exercising their First Amendment rights of ‘editorial discretion over speech and speakers on their property.’

Barring a court order halting enforcement, the law is set to take effect July 1.

Read the full lawsuit below.

[image via Joe Raedle/Getty Images]

The post Florida Social Media Censorship Law Touted by Gov. DeSantis Is a ‘Frontal Assault on the First Amendment’: Lawsuit first appeared on Law & Crime.

via Law & Crime https://lawandcrime.com

May 27, 2021 at 05:47PM

Florida makes it illegal for Facebook and Twitter to ban politicians

Florida Gov. Ron DeSantis, speaks during the Conservative Political Action Conference (CPAC) in Orlando, Florida, on Friday, Feb. 26, 2021.

Florida Gov. Ron DeSantis yesterday signed a bill into law to stop what he called the “censorship” of conservatives on social-media websites such as Twitter and Facebook. The law is likely to be challenged in court and has been described as blatantly unconstitutional by legal experts and advocacy groups across the political spectrum.

But Florida’s governor and legislature were undeterred by the possibility that courts will strike down the law as violating the First Amendment. The law gives Floridians the right to sue Big Tech companies over content-moderation decisions and prohibits the companies from “deplatforming” political candidates and journalistic enterprises. It is scheduled to take effect on July 1.

“This session, we took action to ensure that ‘We the People’—real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites,” DeSantis, who has a Harvard University law degree, said in a press release. “Many in our state have experienced censorship and other tyrannical behavior firsthand in Cuba and Venezuela. If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.” Lt. Gov. Jeanette Nuñez said the law is important because many Floridians “know the dangers of being silenced or have been silenced themselves under communist rule.”

The new law (full text) carves out an exception for tech companies that happen to also own theme parks. That would exempt both Disney and Comcast, the latter of which owns NBCUniversal including Universal Theme Parks. Specifically, the law exempts “any information service, system, Internet search engine, or access software provider operated by a company that owns and operates a theme park or entertainment complex as defined in [Florida law].” To qualify for the exemption, the company’s theme park or entertainment complex must be “comprised of at least 25 contiguous acres,” provide “permanent exhibitions and a variety of recreational activities,” and have “a minimum of 1 million visitors annually.”

While the governor’s announcement didn’t explain the theme-park exemption, it said that “Floridians treated unfairly by Big Tech platforms will have the right to sue companies that violate this law—and win monetary damages. This reform safeguards the rights of every Floridian by requiring social-media companies to be transparent about their content moderation practices and give users proper notice of changes to those policies, which prevents Big Tech bureaucrats from ‘moving the goalposts’ to silence viewpoints they don’t like.”

Additionally, the Florida attorney general “can bring action against technology companies that violate this law, under Florida’s Unfair and Deceptive Trade Practices Act.” Companies that violate the law “will be restricted from contracting with any public entity.”

Ban on banning politicians

The prohibition on kicking politicians off social media platforms allows the Florida Election Commission to “impose fines of $250,000 per day on any social media company that deplatforms any candidate for statewide office, and $25,000 per day for deplatforming candidates for non-statewide offices.”

The law says that “[a] social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate” and that the “platform must provide each user a method by which the user may be identified as a qualified candidate.” Deplatform is defined as “the action or practice by a social media platform to permanently delete or ban a user or to temporarily delete or ban a user from the social media platform for more than 14 days.”

DeSantis objected to the banning of then-President Donald Trump, who was kicked off Twitter and Facebook for inciting violence. “Any Floridian can block any candidate they don’t want to hear from, and that is a right that belongs to each citizen—it’s not for Big Tech companies to decide,” the governor’s announcement said.

US Sen. Ron Wyden (D-Ore.) blasted Florida’s leaders in a statement yesterday. “Following Donald Trump’s lead, Republican-led states are determined to pass laws to force websites and apps to host lies, misinformation and other slime, with full knowledge that those laws are unconstitutional,” Wyden said. “The latest such example out of Florida—which compels online sites to host the speech of politicians—is particularly egregious, and an invitation for extremists, racists and liars to register as political candidates just to keep their posts online.”

While numerous experts believe the Florida law will eventually be struck down, Supreme Court Justice Clarence Thomas recently argued that social media platforms could be regulated as “common carriers.”

Defining censorship

Nuñez claimed that there has been “an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations. Today, by signing SB 7072 into law, Florida is taking back the virtual public square as a place where information and ideas can flow freely. Many of our constituents know the dangers of being silenced or have been silenced themselves under communist rule. Thankfully in Florida we have a governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.”

The law requires social media platforms to “publish the standards, including detailed definitions, it uses or has used for determining how to censor, deplatform, and shadow ban” and to “apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.” It also says the platforms “may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast,” unless the content is “obscene.”

The law defines censorship as “any action taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a right to post, remove, or post an addendum to any content or material posted by a user,” and “actions to inhibit the ability of a user to be viewable by or to interact with another user of the social media platform.” Shadow banning is defined as actions “to limit or eliminate the exposure of a user or content or material posted by a user to other users of the social media platform.”

Supreme Court precedent may doom Florida law

Experts who say the new law is unconstitutional cite a previous case in which a similar Florida law was struck down. After DeSantis announced the proposal in February, First Amendment attorney Ari Cohn told Law & Crime that it “raises the same issue as a previous Florida law which required newspapers that criticized a political candidate to publish that candidate’s response.” In the 1974 case, Miami Herald v. Tornillo, “the Supreme Court struck down the law, ruling that it violated the newspapers’ First Amendment right to choose which content to run or not run,” Cohn said. That case involved a law enacted in 1913.

The Law & Crime article continued:

Professor Daxton “Chip” Stewart, a media law expert who referred to the proposal as “hilariously unconstitutional,” said that DeSantis exhibited a fundamental misunderstanding of corporations’ rights.

“Basically, DeSantis seems to forget that private companies like Facebook and Twitter have First Amendment rights, too,” Stewart noted. “The government can’t force them to host speech they don’t want to, or threaten punishment like these absurd fines for refusing to give platforms to people they find intolerable. Just as a platform can remove accounts of terrorists or the KKK or a cabal that conspires to violently overthrow the government, they can remove accounts of any other individual.”

EFF and TechFreedom agree

The Electronic Frontier Foundation cited the same case. “Since Tornillo, courts have consistently applied it as binding precedent, including applying Tornillo to social media and Internet search engines, the very targets of the [Florida] Transparency in Technology Act (unless they own a theme park),” EFF General Counsel Kurt Opsahl wrote earlier this month. “Indeed, the compelled speech doctrine has even been used to strike down other attempts to counter perceived censorship of conservative speakers.”

On the Lawfare blog in March, TechFreedom Internet Policy Counsel Corbin Barthold and President Berin Szóka also pointed to the Miami Herald v. Tornillo case as an example of why the new law won’t pass constitutional muster. The Supreme Court “has repeatedly held that digital media enjoy the same First Amendment protection as traditional media,” they wrote.

“Only once has the Supreme Court upheld a ‘fairness’ or ‘equal time’ mandate on privately owned media. But that was a special case,” they wrote. “In 1969, Red Lion Broadcasting Co. v. FCC upheld the Federal Communication Commission’s Fairness Doctrine only because broadcast frequencies are scarce, they are owned by the public, and the government licenses their use—clear ‘state action.'”

DeSantis’ argument that Big Tech companies are monopolistic is similar to an argument rejected in the 1974 case, they wrote. “The plaintiff in Miami Herald made a similar argument—and, indeed, many local markets really did have only a single newspaper,” Barthold and Szóka wrote. “Yet the court ruled that no degree of monopoly power could diminish the First Amendment’s protection of newspapers’ editorial discretion.”

Section 230 also protects websites

Wyden pointed out that Section 230 of the Communications Decency Act is also relevant. That US law gives legal immunity to online platforms that block or modify content posted by users.

“The First Amendment to the United States Constitution—backstopped by Section 230—makes it abundantly clear that states have no power to compel private companies to host speech, especially from politicians,” Wyden said. “People eager to chip away at core First Amendment protections for speech must remember that the consequences won’t just impact content they dislike—they’ll apply to everything. Government control of speech on, or off-line, will inevitably be abused by those in power, as made crystal clear by Republican state legislatures at home, and governments abroad like India and China that are already censoring critics.”

via Ars Technica https://arstechnica.com

May 25, 2021 at 02:56PM

Florida Lawmakers Debate To Repeal Infamous Stand Your Ground Law

In Florida, lawmakers in the state legislature will debate a bill that repeals the Stand Your Ground law. When Trayvon Martin was killed in 2012, the man who shot him used that law in his defense.

In Florida, lawmakers in the state legislature will debate a bill that repeals the Stand Your Ground law. When Trayvon Martin was killed in 2012, the man who shot him used that law in his defense.

AUDIE CORNISH, HOST:

Today in Florida, Democratic lawmakers introduced a bill that would repeal a law often called Stand Your Ground. It’s a measure that allows people to use deadly force when acting in self-defense. The law is controversial, but in the 16 years since Florida passed it, Stand Your Ground has been adopted by most U.S. states. NPR’s Greg Allen reports.

GREG ALLEN, BYLINE: Democrats have attempted to repeal or modify Florida’s Stand Your Ground statute nearly every year since 2012. That was the year Neighborhood Watch volunteer George Zimmerman confronted, then shot and killed teenager Trayvon Martin as he returned home from a gas station. A jury determined Zimmerman acted in self-defense and acquitted him, sparking a national outcry. Chryl Anderson is with Florida Moms Demand Action, a group fighting to stop gun violence.

CHRYL ANDERSON: Stand Your Ground must end – for two young men, forever 17, Jordan Davis and Trayvon Martin, whose birthdays are this month.

ALLEN: Jordan Davis, an African American like Trayvon Martin, was shot and killed by a white man in a dispute over loud music. Stand Your Ground was cited, but his assailant was convicted of murder. Shevrin Jones, a Democratic state senator, says Stand Your Ground laws make communities less safe.

SHEVRIN JONES: We know for a fact Stand Your Ground promotes vigilantism and allows people to shoot first and ask questions later. But more importantly, it puts Black people and other people of color at greater risk of gun violence.

ALLEN: In states with Stand Your Ground laws, an analysis of FBI data found when the gunman is white and the victim is Black, homicides are five times more likely to be deemed justified than when the situation is reversed. After Florida passed the first Stand Your Ground law in 2005, Robin Thomas with the Giffords Law Center to Prevent Gun Violence says many other states followed suit, largely because of intense lobbying by the National Rifle Association.

ROBYN THOMAS: These laws just were passed sort of methodically, particularly in red states, state by state by state, over the course of about 10 years.

ALLEN: Twenty-seven states now have Stand Your Ground laws. High-profile cases like those involving Trayvon Martin and Jordan Davis have helped build opposition to Stand Your Ground laws, but so far, no state has repealed its version. In Florida, even the sponsor of the repeal measure, Senator Jones, isn’t optimistic it has a chance in a chamber controlled by Republicans.

JONES: In Florida, we’re just going to have to continue making the noise and letting them know that we won’t shut up until we will be heard.

ALLEN: A spokesperson for Florida’s NRA said she had no comment on the repeal effort because she hasn’t seen the bill.

Greg Allen, NPR News, Miami.

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February 4, 2021 at 04:34PM

Gov. DeSantis’s Proposed Law Penalizing Social Media Companies for De-Platforming Politicians Is ‘Hilariously Unconstitutional’

Despite his degree from Harvard Law School, Florida’s Republican Gov. Ron DeSantis’s latest fusillade against Silicon Valley has left legal observers wondering whether he has read the First Amendment of the U.S. Constitution. The pro-Trump Republican zealously advocated for a series of self-styled anti-censorship laws that three legal experts contacted by Law&Crime noted amount to unconstitutional compulsory speech for private companies—in direct contravention of U.S. Supreme Court precedent.

And DeSantis could have learned as much by reading a famous high court case involving his hometown paper.

In a last-minute press conference largely focused on denouncing “Big Tech” and “cancel culture,” DeSantis unveiled a proposal to penalize social media companies that suspend or block candidates for political office with hefty fines.

“We’ve seen the power of their censorship over individuals and organizations, including what I believe is clear viewpoint discrimination,’’ DeSantis said. “Under our proposal, if a technology company de-platforms a candidate for elected office in Florida during the election, a company will face a daily fine of $100,000 until the candidate’s access to the platform is restored again.”

DeSantis made his announcement on the same day that attorneys for Donald Trump formally argued that the former president’s false claims of election fraud and the role his words played in inciting his supporters to storm the U.S. Capitol were protected by the First Amendment.

The governor even specifically cited Twitter’s decision to permanently suspend Trump from its platform as a reason why his proposal was vital to upholding vital free speech principles.

But legal experts were quick to point out that DeSantis’s proposal was itself an unequivocal attack on constitutionally protected free speech.

“Governor DeSantis’ proposal is neither novel nor constitutional. It raises the same issue as a previous Florida law which required newspapers that criticized a political candidate to publish that candidate’s response,” First Amendment attorney Ari Cohn said in an email to Law&Crime.

That 1974 case, Miami Herald v. Tornillo, was cited by all three experts Law&Crime contacted.

“The Supreme Court struck down the law, ruling that it violated the newspapers’ First Amendment right to choose which content to run or not run,” Cohn said. “In invalidating that law, the Court expressly rejected the very same argument people make for regulating content moderation today: that concentration of ownership and ‘monopoly of the means of communication’ justifies forcing private parties to carry certain speech. But the Court found it unconstitutional then, and it remains unconstitutional now.”

Professor Daxton “Chip” Stewart, a media law expert who referred to the proposal as “hilariously unconstitutional,” said that DeSantis exhibited a fundamental misunderstanding of corporations’ rights.

“Basically, DeSantis seems to forget that private companies like Facebook and Twitter have First Amendment rights, too,” Stewart noted. “The government can’t force them to host speech they don’t want to, or threaten punishment like these absurd fines for refusing to give platforms to people they find intolerable. Just as a platform can remove accounts of terrorists or the KKK or a cabal that conspires to violently overthrow the government, they can remove accounts of any other individual.”

Stewart also noted that the Tornillo decision provided astute guidance on the matter.

“The [Tornillo] logic carries over to this kind of situation – platforms, as private companies, are allowed to make editorial decisions. The state of Florida could no more fine Facebook for refusing to host a racist or fascist politician than it could force a newspaper to publish an op-ed by that politician,” he wrote. “Sure, they may be shielded from liability for making those decisions under Section 230 of the Communications Decency Act, but that’s a different law for a different situation. It doesn’t alter the First Amendment at all. It seems that a lot of the time that these politicians complain about Section 230, what they really don’t like is that platforms have free speech protections just like regular citizens do. And you can’t undo that by repealing or changing Section 230.”

First Amendment attorney Marc J. Randazza lauded DeSantis’s overall objective, but said the proposed measure was not a viable means of achieving those ends.

“I respect what DeSantis is trying to do, but unconstitutional acts engaged in for a good reason do not transform them into constitutional acts,” he wrote, adding that the governor should start by “re-reading Miami Herald v. Tornillo.”

DeSantis did not immediately respond to an email requesting comment.

[image via Joe Raedle/Getty Images]

The post Gov. DeSantis’s Proposed Law Penalizing Social Media Companies for De-Platforming Politicians Is ‘Hilariously Unconstitutional’ first appeared on Law & Crime.

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February 3, 2021 at 01:54PM

Florida Activists Call Anti-Protest Laws Biased

After months of public outrage and accusations of discrimination over disparate penalties against Black Lives Matter (BLM) activists who clashed with Proud Boys and counterprotesters during a demonstration in New Port Richey, Fl., last summer,  local  police dropped the citations against seven BLM demonstrators. But the incident has raised concerns about a push by Gov. Ron DeSantis and other Florida GOP lawmakers for a sweeping state bill to crack down on disruptive protests, creating new classes of crimes that include up to 15-years in jail if police declare that nine or more people have participated in a riot, reports the Washington Post. Dozens of Floridians showed up at the state capitol in Tallahassee Wednesday to testify against the governor’s protest bill in front of a House committee, arguing that the measure would cripple free speech and make it easier for law enforcement agencies to discriminate against people of color

DeSantis initially proposed the legislation amid nationwide Black Lives Matter protests, singling out tactics associated with racial justice protests: damaging memorials and blocking roadways, while providing protection from lawsuits for drivers who push through such protests. At least 28 states considered similar bills that created new or harsher penalties for protesters last year,  In addition to creating new crimes and penalties for damaging memorials, the bill increases penalties for battery of a law enforcement officer and outlaws “mob intimidation,” defined as two or more people attempting to compel another “to assume or abandon a particular viewpoint.”

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February 3, 2021 at 11:06AM